No. 821 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division, Philadelphia County, at Nos. 1235-36-38-39 January Term 1979.
William P. James, Philadelphia, for appellant.
Michele A. Goldfarb, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Brosky and Hoffman, JJ. Brosky, J., concurs in the result.
[ 292 Pa. Super. Page 265]
This is an appeal from judgments of sentence for burglary, possessing an instrument of crime, simple assault, and conspiracy. Appellant, who obtained new counsel after trial, argues that he should have a new trial because his trial counsel was ineffective. Finding no merit to this argument, we affirm.
In reviewing a claim of ineffectiveness, we must make an independent review of the record, and of trial counsel's "stewardship of the now challenged proceedings in light of the available alternatives." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 604, 235 A.2d 349, 352 (1967). Here, our review of the record reveals the following.
On November 18, 1978, a group of ten to fifteen people were at the house of Alice Price, in Philadelphia, for a dinner that she was sponsoring to raise money for her church choir. At about 5:00 p. m. three men entered the house, announced a holdup, and ordered everyone to lie down on the floor. One man held a shotgun on the victims; another collected their jewelry and pocketbooks; and a third went upstairs in search of other persons. This third man was later identified by Alice Price and her nephew, Leon Stewart, as having been appellant. Leon Stewart was in a bedroom on the second floor. When he saw appellant climbing the stairs with a gun, he closed and locked the bedroom door. Appellant fired his gun into the door; the bullet went through the door and struck Stewart in the arm. Appellant then kicked in the door. Stewart fired a 12 gauge shotgun at appellant and wounded him in the neck. After emptying his gun at Stewart, wounding him in the arm, neck, and shoulders, appellant retreated down the stairs, bleeding profusely, and fled, with his cohorts.
Appellant was taken to Einstein Hospital and placed in intensive care, and a little later, so was Stewart. The police interviewed Stewart, and on the basis of what he told them had happened, and his description of the man he had shot, they arrested appellant.
[ 292 Pa. Super. Page 266]
Appellant testified in his own behalf. He denied having been at the Price residence, and denied involvement in the robbery. He explained his wounds as follows:
My father had some shotguns in the cellar. I was messing around with one of the shotguns. I went there, had been looking around the house was in the cellar, was messing with one of the shotguns, which went off, hit me in my face. All I could think of was trying to get to a hospital, so as I ran upstairs, I couldn't think of going to the phone, to call an ambulance. I opened the door to see if my mother's neighbor, who is a close friend of the family's, she was home, she had an automobile. At that time my cousin Joseph Newkirk drove up, asked what happened, I told him a shotgun went off. He said, "Come on, let's get you to a hospital." I got in the car, he took me to a hospital at Broad and Olney.
In his summation,*fn1 appellant's trial counsel referred to this testimony. He said: "My theory is this: robbery occurred. Mr. Stewart was shot. Mr. Alderman had been shot at his mother's house." N.T. 182. Counsel then proceeded to attack the Commonwealth's identification evidence and emphasized appellant's testimony regarding the origin of his wounds. N.T. 182-193.
An evidentiary hearing on counsel's effectiveness was held, at which Newkirk, appellant's brother Robert, appellant, and trial counsel testified.
Newkirk testified that on November 18, 1978, he went to the house of his aunt, appellant's mother, and upon arriving, saw appellant standing at the door, holding his collar. He also testified that when appellant said that he had accidentally shot himself, he took appellant to the emergency ward of Einstein Hospital. N.T. 2/13/80 at 2-5.
Appellant's brother Robert testified that in November 1978 he lived with his mother, and that on November 18, after learning of ...